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The courts in Montana are in good hands

Montana's courts have been the target of criticism from the political fringe. Recently it has increased. Don't buy it, and I want to explain why. Here are my thoughts as an attorney practicing in courtrooms across Montana.

Our Montana courts are in good hands. Montana has no significant problem with activist judges, radical judges, or politically motivated decisions. Are judges perfect? No, they are people like the rest of us. Sometimes they do something wrong, sometimes they disagree.

Court decisions are carefully based on previous (sometimes dozens) similar cases that are landmark and require a particular outcome. These past cases are “precedents.” Judges have some discretion, but not much since they must stay within the bounds of precedent. Disagreements between justices are relatively minor and limited to the boundaries of precedent.

Criticism of court decisions typically comes from not reading the decision and only looking at the outcome. Political parties are quick to blindly declare a court decision a “win” or a “loss” without reading the decision to see why it was decided. Lately, many have (incorrectly) insisted that the Montana Supreme Court's decisions are politically based, even though this is not the case. Before you take my word for it, let me explain to you some recent Montana Supreme Court cases that turn this claim on its head.

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Initially, Forward Montana was decided in January 2024. The Montana Constitution contains a very basic rule for making laws called the “Single Subject Rule.” The Single Subject Rule means that a bill can only cover one subject (i.e. a bill about fruit cannot also cover racing cars). Separate subjects require separate invoices. The purpose of the Single Subject Rule is to avoid hidden and misleading laws. We want our laws to be clear.

Forward Montana was a fake driver that was incorporated into independent legislation at the last second. The violation of the Single Subject Rule was so blatant that the Attorney General did not even attempt to defend the case. The court awarded attorneys' fees to the plaintiffs, reasoning that Montana residents would not have to pay attorneys to challenge such a blatantly unconstitutional proceeding. Only the parts of the law that were struck down at the last minute were deleted; the rest remained in place. Overall, it wasn't a big deal for a legislative session that successfully passed a dizzying array of bills.

Republicans were outraged and emphasized that the decision was politically motivated. A month later, as editorials by Republican politicians denigrating the Supreme Court hit newsstands, the court decided another case, the Tintina case, in February 2024. In this case, the court allowed the Tintana Company to move forward with construction of a mine at the headwaters of the Smith River in Montana. Republicans widely welcomed this decision

Profit for companies and deregulation. Democrats are furious, claiming it's another example of the court favoring big business at the expense of the environment.

Some Democrats mistakenly believe it had something to do with politics, but that wasn't the case. Rather, the court's task in Tintana was limited to verifying whether the permitting authority (Montana DEQ) had adequately examined the mine application. The court found that this was the case.

So the Supreme Court justices who were liberal activists in January were suddenly right-wing activists in February? No, and when you read the cases, the logic is based on a careful compilation of precedent, not politics. Forward Montana wasn't about whether the justices liked a Republican law or not, and Tintana wasn't about whether the justices thought a mine on a Smith River tributary was cool – instead, both cases were simply about whether rules apply were tracked. The court has fulfilled its task.

Just because a political party likes or dislikes the outcome of a case does not mean that the case was politically motivated. The two cases discussed here are just the most recent examples of outcomes that have radically different policy implications from the same judges. You can always choose one thing and disagree with some of the logic, but that doesn't mean politics was involved.

Remarkably, judges in Montana are deciding thousands of other cases that don't make headlines, have nothing to do with politics, and are ignored by the politically motivated fringe. Driving under the influence, child custody matters, property boundary disputes, and business disputes are all examples of problems judges face on a daily basis, mostly thankless and ignored work. Politicians tend to focus only on the 0.1% of cases that affect their agenda, ignoring the bigger picture. Meanwhile, judges in Montana are simply doing their jobs in thousands of less high-profile cases.

More Montanans than ever are on the fringes of political extremes. EVERYTHING is about politics, even if it isn't. To someone on the extreme political left everything will seem right and vice versa. When someone criticizes the Montana Supreme Court for being left/right, it says little about the Court and more about the political blinders of the person hurling the arrows.

For the remaining open-minded Montanans, our dishes are just the thing. If you don't trust me, that's fine, but talk to someone else who follows the Montana Supreme Court closely and reads more than just the occasional decision (note: my record on the Montana Supreme Court is 0-1, me So I'm far from a know-it-all!). If you have questions about judicial candidates, talk to some attorneys who practice before those judges.

It's important to me because the role of the courts is important. The courts should not be a rubber stamp for whichever political party is currently in power. Think of any American right you care about (hopefully more than one) – the right to bear arms, free speech, religion, equal protection – the court cannot blindly pass laws that violate those rights, no matter what the politicians want. The courts enable ordinary citizens to challenge abuses of power, to ensure that the Constitution is not just a forgotten piece of paper, and to enable citizens to challenge laws and government actions.

What angers those in power is that courts do not choose winners and losers based on policy or bank account size, but instead choose winners and losers based on actual evidence, precedent, logic and accountability. If we lose that, we lose a lot.

Kiel Duckworth is an attorney in Polson.

Anna Harden

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